United States v. Zazi (D. Col.); legislative proposal to add new mens rea element to the 1996 material support statute

1.. United States v. Zazi (D.Col.)

In a story that has received a significant amount of media attention over the past few days, FBI agents in Colorado have arrested Najibullah Zazi (a lawful permanent resident hailing from Afghanistan) and his father, Mohammed Wali Zazi (a naturalized US citizen originally from Afghanistan), while FBI agents in New York have arrested Ahmad Wais Afzali (a lawful permanent resident hailing from Afghanistan). The men are charged with making false statements to the FBI in violation of 18 USC 1001(a)(2). Ordinarily that offense is punishable by a maximum sentence of five years, but the maximum is eight years where, as may be the case here, the false statement relates to an offense amounting to “international terrorism” as defined in 18 USC 2331(1).

Most likely this is a placeholder charge, providing grounds to arrest the men now on a relatively dependable charge while the case continues to develop (for the teachers out there, this is a pretty good example of the use of “investigative charges” in the preventive-prosecution setting). Based on the information provided in the affidavits FBI agents submitted in support of the criminal complaint and arrest warrant in these cases (two of which are postedhere and here), we might see eventual indictments including charges under 18 USC 2339B (providing material support to a designated foreign terrorist organization (here, al Qaeda), in the form of providing himself as personnel subject to the group’s direction and control), 18 USC 2339A (providing material support to anyone, knowing or intending the support will facilitate any of a range of crimes including a host of terrorism conspiracy statutes), conspiracy counts under both material support statutes, conspiracy charges under 18 USC 2332b (terrorism transcending international boundaries), and a relatively new provision: 18 USC 2339D, which criminalizes the receipt of military-type training from designated foreign terrorist organizations. Then again, one never knows. Nothing more might come of it despite all the publicity, or some or all of these defendants might reach a plea agreement before things progress further (note that the press release quoted below references the prospect of other suspects). In any event, here is how the evidence is summarized in the FBI’s press release:

According to affidavits filed in support of the three criminal complaints, the FBI is investigating several individuals in the United States, Pakistan and elsewhere, relating to a plot to detonate improvised explosive devices in the United States.

Records from U.S. Customs and Border Protection (CBP) reflect that, on Aug. 28, 2008, Najibullah Zazi flew to Peshawar, Pakistan from Newark International Airport via Geneva, Switzerland and Doha, Qatar. CBP records further reflect that Najibullah Zazi traveled from Peshawar to John F. Kennedy International Airport on or about Jan. 15, 2009.

According to the affidavits, on or about Sept. 9, 2009, FBI agents observed Najibullah Zazi depart his residence in Colorado in a rented car. He drove to New York City, arriving the following day, and spent the night at a residence in Flushing, Queens (“the Queens Residence.”)

On Sept. 10, 2009, New York City Police Department (NYPD) detectives met with defendant Afzali, whom the NYPD had utilized as a source in the past. According to the affidavits, the detectives questioned Afzali about Najibullah Zazi and others and showed him photographs of Najibullah Zazi and others. Afzali allegedly told the detectives he recognized Najibullah Zazi and several of the men in the photographs.

According to affidavits, on Sept. 11, 2009, defendant Mohammed Zazi placed a call to Afzali which lasted approximately 20 minutes. That same day, the FBI lawfully intercepted a phone conversation between Mohammed Zazi and his son, Najibullah Zazi. An affidavit alleges that, during the conversation, Mohammed Zazi told his son that he had spoken to Afzali who had informed him about being visited by law enforcement and shown photographs. Mohammed Zazi told his son that Afzali would call him and he advised his son to speak with Afzali “before anything else,” according to affidavits.

In the midst of this phone call, Najibullah Zazi allegedly received a call from Afzali, who discussed his meeting with law enforcement the day before. According to a draft summary of the transcription, Afzali allegedly stated: “I was exposed to something yesterday from law enforcement. And they came to ask me about your characters.” Afzali also allegedly asked Najibullah Zazi about his last trip to Pakistan and added, “Listen, our phone call is being monitored.”

According to the affidavits, in another legally intercepted phone conversation on Sept. 11, 2009, Najibullah Zazi told Afzali that his car had been stolen and that he feared he was being “watched.” Afzali allegedly asked if there was any “evidence in his car,” and Najibullah Zazi said no.

That same day, FBI agents conducted a legally authorized search of Najibullah Zazi’s rental car, which was parked near the Queens residence. During the search, agents found a laptop computer containing a jpeg image of nine-pages of handwritten notes. According to the affidavits, the notes contain formulations and instructions regarding the manufacture and handling of initiating explosives, main explosives charges, explosives detonators and components of a fuzing system. On Sept. 12, 2009, Najibullah Zazi flew from La Guardia Airport in New York to Denver.

On Sept. 16, 2009, FBI agents interviewed Najibullah Zazi in Denver. According to an affidavit, when he was asked about and shown handwritten notes regarding explosives found on his laptop computer, Najibullah Zazi falsely asserted that he had never seen the document before and stated he had not written the notes.

On Sept. 17 and 18, 2009, Najibullah Zazi was further interviewed by the FBI in Denver. According to affidavits, Najibullah Zazi admitted in the interviews that during his 2008 trip to Pakistan, he attended courses and received instruction on weapons and explosives at an al-Qaeda training facility in the Federally Administered Tribal Areas (FATA) of Pakistan.

The affidavits allege that, on Sept. 17, 2009, Afzali was interviewed by authorities in New York where he falsely asserted in a written statement that he did not tell Najibullah Zazi or Mohammed Zazi that authorities had approached him seeking information about Najibullah Zazi. According to the affidavits, Afzali also falsely asserted that he never told Najibullah Zazi that they were being monitored on the phone and that he never asked Najibullah Zazi about evidence in his car.

The affidavits further allege that, on Sept. 16, 2009, Mohammed Zazi was interviewed by the FBI in Denver where he was asked whether anyone had called him and told him about his son’s activities and any trouble regarding his son. According to the affidavits, Mohammed Zazi falsely stated that he had never called anyone in New York other than his son and he had never received a call from anyone in New York. He allegedly revised his statement to say he had received one call from an individual who informed him that his son had missed his flight. According to the affidavits, Mohammed Zazi was later asked if he knew anyone by the name of Afzali and he said he did not.

2. Speaking of the 1996 material support statute: Proposed legislation would amend 18 USC 2339B by adding a new mens rea element

A legislative proposal aimed primarily at imposing greater regulation of national security letters, the FISA system, and other investigative tools (many associated with the USA PATRIOT Act of 2001) turns out to contain a provision that would significantly alter the scope of 18 USC 2339B, the 1996 material support statute mentioned briefly above. As originally designed in 1996, 18 USC 2339B does not require proof that the defendant actually intended or knew (or even should have known) that the support he or she provided would facilitate any particular harmful act. Notably, conduct of that nature already had been criminalized by Congress in 1994, for all practical purposes, in the form of the original material support statute, 18 USC 2339A. The notion behind pursuing enactment of a broader material support statute even after the 1994 law went on the books was that a broad embargo was needed against designated foreign terrorist organizations because such groups might use the support for intended or unexpected purposes, because some forms of support are fungible (especially cash), and because even forms of support that are innocuous in and of themselves nonetheless may be detrimental in the broader sense that they strengthen the organization.

The “JUSTICE Act,” introduced by Senators Feingold and Durbin, contains language at section 502 that would change this. Specifically, it would amend 18 USC 2339B to require proof that the defendant knew or intended that the support at issue “will be used in carrying out terrorist activity (as defined in section 212(a)(3)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(iii)).” I’ll have to think this through a bit more, but my initial reaction is that any scenario that could be charged under this modified version of 2339B almost certainly could already be charged under 2339A. If that is correct, the net effect of the proposed change, for good or ill, would be to restore the circumstances as they stood in 1995.

[For what it’s worth, I have argued for years (see here, for example) that there is indeed a meaningful distinction between the person who gives support to a designated group with bad intent, and someone who naively or foolishly gives support to a designated group with no harmful intent. I think that distinction should be reflected in the defendant’s sentencing exposure, however, rather than by eliminating the embargo-aspect of 2339B altogether. On this view, the maximum sentence under 2339B should correspond to the mens rea proven by prosecutors, with a high maximum for the bad-intentioned defendant and a relatively light max for the foolish-but-well-intentioned one.]

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